Administrative Deviance: Corruption, Nepotism and Maladministration

Its distinguishing feature is that no dishonesty is involved and no law is broken. That is precisely what makes it difficult to remedy.

The three compared

Why maladministration is the hardest

Because the courts cannot reach it, and saying why is the most examinable point in the chapter.

Facts. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, concerned admissions to the two government medical colleges of Jammu and Kashmir for 1988-89. The High Court had earlier directed the State to entrust selection to a statutory independent body, and until that was done to a body free from executive influence; the State constituted a Competent Authority by a procedure order of 1987; unsuccessful candidates challenged the selection as violating those directions, and the High Court allowed their petitions and issued a mandamus.

Held. Although separation of powers is not recognised under the Constitution in its absolute rigidity, the Constitution makers meticulously defined the functions of the organs, which must function within their own spheres. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and the executive, but while their power is subject to judicial restraint, the only check on the court's own power is the self imposed discipline of judicial restraint. In exercising judicial review of administrative action the court is not an appellate authority, and the Constitution does not permit it to direct or advise the executive in matters of policy or to sermonise on matters within the sphere of the legislature or the executive, provided those authorities do not transgress their constitutional or statutory limits.

Why it matters here. A court can quash an unlawful order. It cannot make an office polite, prompt or competent, and it will not direct the executive how to administer. That is why maladministration requires the Ombudsman, the charter, the measurement of performance and the right to information rather than the writ.

The causes

Six, and they connect this chapter to the last.

1. Wide discretion with no published criteria, which creates both the opportunity for corruption and the space for favouritism: [Administrative Discretion and Why It Is Conferred].
2. Monopoly. Where the citizen has no alternative source of the permission or service, the official's position is strong.
3. Opacity. Corruption and favouritism survive in the dark, which is the argument of [Transparency and the Right to Information: a Constitutional Imperative].
4. Low probability of detection and of consequence, given the difficulty of proving a bribe and the length of departmental and criminal proceedings.
5. Scarcity. Where a benefit is scarce and demand exceeds supply, allocation creates rent.
6. Procedural complexity. The more steps, forms and approvals, the more points at which delay can be created and payment sought.

The remedies, matched to the causes

Notice that prosecution appears only once in that table. Criminal law addresses the fourth row and nothing else. The other five are addressed by design, transparency and procedure, which is why administrative law, and not only criminal law, is where the answer to corruption mostly lies.

A worked example

An applicant for a shop licence is told that his file cannot be found, that the inspection is pending, and that a colleague could expedite matters for a consideration. His neighbour, whose brother is a clerk in the office, received a licence in four days.

Corruption. The demand for a consideration is an offence under the Prevention of Corruption Act 1988, and the applicant may complain to the Central Vigilance Commission under the PIDPI Resolution 2004 if a central official is involved, or to the State anti-corruption bureau or the Lokayukta.

Nepotism. The neighbour's four day licence, if it can be shown that the ordinary time is months and the difference is the relationship, is an irrelevant consideration and unequal treatment under Article 14. The remedy is a writ petition, and the evidence comes from a request under the Right to Information Act 2005 for the dates of application and disposal of every licence in that period.

Maladministration. The lost file and the pending inspection, with nothing more, are not an offence and not unlawful. A court will order the authority to decide, but nothing more. The remedies are the grievance mechanism, the citizens' charter timeline, a complaint to the Lokayukta under the 1971 Act, which covers a grievance founded on maladministration, and the file notings obtained under the Right to Information Act 2005.

That single fact pattern contains all three forms of deviance and shows that they need three different answers.

What it does NOT mean

It does not mean all deviance is criminal. Only corruption is. Nepotism is unconstitutional and maladministration is neither.

It does not mean nepotism requires payment. The vice is the criterion applied, not any benefit received.

It does not mean maladministration is trivial. It affects far more citizens than corruption does.

It does not mean prosecution is the main answer. It addresses one of six causes.

Quick revision

1. Administrative deviance: conduct by an official departing from the norms of his office. Three forms: corruption, nepotism and favouritism, and maladministration.
2. Corruption: use of public office for private gain. Criminal, under the Prevention of Corruption Act 1988.
3. Nepotism: favouring relatives, from the Latin nepos. Favouritism is wider. The vice is applying a relationship instead of merit, and no money need pass. Remedies are Articles 14 and 16, review for irrelevant considerations, and the rule against bias.
4. Maladministration: bad administration without illegality. The Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 defines it as action, or the procedure or practice governing it, which is unreasonable, unjust, oppressive or improperly discriminatory.
5. Courts cannot reach maladministration: Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that the court is not an appellate authority and may not direct or advise the executive on matters of policy.
6. Causes: wide unstructured discretion, monopoly, opacity, low probability of detection, scarcity, and procedural complexity.
7. Remedies matched to causes: published criteria and reasons, competition and electronic delivery, the Right to Information Act 2005, vigilance and whistleblower protection, transparent allocation, and simplification with time bound guarantees. Prosecution addresses only one cause.

Test yourself

1. What is administrative deviance? Distinguish its three forms. It is conduct by a public official which departs from the norms his office requires. Corruption is the use of public office for private gain, including demanding or accepting a bribe, extortion under colour of office and misappropriation; its essence is a private benefit obtained by abusing a public position, and it is a criminal offence. Nepotism is the favouring of relatives, and favouritism the wider preference for friends, caste, community, region or political affiliation; its essence is that a relationship is applied as the criterion instead of merit, and no money need change hands, which is why it is not merely a species of corruption. Maladministration is bad administration falling short of illegality: delay, incompetence, neglect, failure to reply, failure to follow the department's own procedure, and action that is unreasonable, unjust, oppressive or improperly discriminatory; no dishonesty is involved and no law is broken.

2. What are the remedies for nepotism? Primarily constitutional rather than criminal. Article 14 forbids arbitrary State action and Article 16 guarantees equality of opportunity in matters of public employment, so an appointment or benefit conferred because of a relationship rather than on the prescribed criteria is arbitrary and may be quashed. In administrative law terms, the relationship is an irrelevant consideration, which is a ground of review for abuse of discretion, and where the decision maker is himself related to the beneficiary the decision is vitiated by personal bias. Institutionally, the answer lies in merit based recruitment through the Public Service Commissions, published criteria, transparent selection procedures and the ability of any citizen to obtain the record under the Right to Information Act 2005 and compare how comparable cases were treated.

3. Why is maladministration difficult to remedy through the courts? Because it is not illegality. A court reviews the legality of administrative action, and delay, rudeness, inattention and incompetence break no law. Asif Hameed v. State of Jammu and Kashmir, AIR 1989 SC 1899, holds that in judicial review the court is not an appellate authority, that the Constitution does not permit it to direct or advise the executive in matters of policy or to sermonise on matters within the executive's sphere provided it stays within its constitutional and statutory limits, and that the only check on the court's own power is self imposed judicial restraint. A court can order an authority to decide an application; it cannot make an office prompt or competent. That is why maladministration requires the Ombudsman, citizens' charters, measurement of performance and the right to information rather than the writ.

4. State the causes of corruption in administration and the remedies matched to them. Wide discretion without published criteria, which is answered by structuring discretion, publishing criteria and requiring reasons. Monopoly, where the citizen has no alternative source of the permission or service, answered by competition, alternative channels and electronic delivery. Opacity, answered by the Right to Information Act 2005 and particularly its section 4 requirement of proactive disclosure. A low probability of detection and consequence, answered by vigilance machinery, the Central Vigilance Commission and the protection of informants. Scarcity of a benefit relative to demand, answered by transparent allocation through a published rule, auction or lottery. And procedural complexity, which multiplies the points at which delay can be created, answered by simplification, single window clearance and time bound service guarantees. Prosecution addresses only the fourth of these, which is why the answer to corruption lies largely in administrative design rather than in the criminal law.

5. How does the Maharashtra Lokayukta and Upa-Lokayuktas Act 1971 define maladministration, and why does the definition matter? It defines maladministration as action taken or purporting to have been taken in the exercise of administrative functions in any case where such action, or the administrative procedure or practice governing it, is unreasonable, unjust, oppressive or improperly discriminatory, among other limbs. The definition matters because it gives a statutory handle to conduct which is not otherwise unlawful. A citizen who has suffered injustice or undue hardship in consequence of maladministration has a grievance which the Lokayukta may investigate, whereas he would have no cause of action in a civil court and no ground for a writ. It also marks the difference between the 1971 Act and the Lokpal and Lokayuktas Act 2013, which is confined to corruption, so that the older State Act reaches a class of complaint the central Act does not.